Wed November 6, 2013

Secret Persuasion: How Big Campaign Donors Stay Anonymous

A composite image shows part of the NPR/Center for Responsive Politics reporting team's whiteboard at NPR headquarters that was used to map out how Wellspring connects to other social welfare groups. (Click the enlarge button to see a full-size image.)

In this panoramic composite image, NPR's Peter Overby and Viveca Novak of the Center for Responsive Politics stand in front of a whiteboard at NPR headquarters that they used to map out connections between social welfare groups.

As tax-exempt organizations become a vehicle of choice for big political donors, one powerful appeal is the anonymity. Federal laws allow tax-exempt groups — unlike political committees — to withhold their donor lists from disclosure.

And some groups take the low profile a step further. An investigation by NPR and the Center for Responsive Politics found a tier of social welfare groups that operate behind the scenes, raising money and doling it out to other, more public groups, while reporting those grants to the IRS only annually.

One pioneer in this activity is the Wellspring Committee, founded in 2008. Based in the Washington, D.C., suburbs, it has raised $24 million, and distributed nearly $16.9 million to other social welfare groups. Using tax records, the NPR-CRP investigation identified three of its donors — other social welfare groups — and found they accounted for just over $251,000, or 1 percent of Wellspring's revenues.

Wellspring's president is Ann Corkery, an active figure within the social conservative movement. Over the years, she has been involved with the National Organization for Marriage, Catholic League and other groups working on social issues.

Wellspring, however, says it focuses on economic matters. It told the IRS in its application for tax-exempt status that it would "assist other like-minded organizations in promoting free market policies and principles." It also would help other organizations "in developing messaging strategies," apparently drawing on Corkery's experience as a lawyer specializing in reputation campaigns.

"This sudden angst about 501(c)(4)s is startling to me," says Cleta Mitchell, one of Washington's top campaign finance attorneys. Social welfare organizations are also known as 501(c)(4)s, their designation in the tax code.

The public picture of Wellspring remains hazy. Mitchell wouldn't say much more about it. But tax returns of Wellspring and other groups provide a broad picture of the finances: Wellspring's spending spikes in election years. In 2010, it had financial ties to more than two dozen other groups. And in that election cycle, it sent money to groups working on judicial elections in five different states.

Mitchell says there's nothing surreptitious about it. These groups work almost like investment funds, she says, shepherding donors' money into selected other social welfare groups.

Big donors can be smart in business, but sometimes they can make mistakes when investing in political campaigns, Mitchell says, so groups like Wellspring are there to help.

"Things they would never, ever do in business, they'll do in politics," she says.

And all of this money — being raised and transferred behind a curtain of nondisclosure — is the crux of what makes social welfare groups controversial.

"It reminds me more of tax shelter transactions," says Donald Tobin, a law professor at Ohio State University's Moritz College of Law, who specializes in tax law and campaign finance.

"One of the interesting things for Wellspring is [that] on all of their filings, they claim that they're not intervening in a political campaign," Tobin says. "But then they give to just huge numbers of organizations that do engage in political campaigns."

Mitchell's blunt question: "What's bad about this?" After all, she says, these are not political committees operating under federal election laws.

The IRS agrees. Most of the thousands of social welfare groups are civic-minded — for example, volunteer departments, Rotary Clubs and the League of Women Voters.

But under the tax rules, a social welfare group can only commit up to half of its resources on political intervention. Notably, when one group gives money to another one, it can still count as social welfare for the donor — even if the second group spends the money on politics.

Tobin sees this as a loophole, and says it raises questions about IRS enforcement. He says the agency "doesn't have the resources to enforce, and doesn't have the will to enforce."

The IRS has been hit with budget cuts and a steady pounding of partisan attacks. Just this spring, congressional Republicans accused it of hounding conservatives who applied for tax-exempt status as social welfare organizations. Rep. Cynthia Lummis, R-Wyo., said at one hearing: "This is far worse than anything we've seen in Watergate."

The controversy caused an overhaul of IRS management, and the agency says it's working to clarify the rules. IRS officials didn't respond to an interview request for this story.

Marcus Owens, who headed the agency's division on exempt organizations throughout the 1990s, says it's too soon to forecast whether the agency will get tougher on social welfare groups in politics — or whether it will buckle to political pressure, and end up "just processing the paper rather than examining what is on the paper" of 501(c)(4) filings.

For now, Washington sees social welfare groups less as a problem and more as an effective way to raise money, across the political spectrum.

Mitchell, the campaign finance lawyer, says that's fine. If someone wants to make political donations, she says, "that is not the government's business. If people want to spend the money and get together with their friends and spend the money, let 'em do it."

And let 'em do it privately. Mitchell says conservative donors risk harassment by liberal activists when their names are disclosed — a violation of their free speech rights. Yet there are liberal social welfare organizations, just not nearly as many as conservative 501(c)(4)s. In the 2012 elections, conservative groups substantially outnumbered and outspent the liberals.

So far, conservatives have predominated in social welfare politics. In the 2012 federal campaigns, 20 groups on the right ran up $1 million or more in disclosed spending, compared with seven on the left. Now liberals are working to catch up.

Tobin, the Ohio State law professor, says Wellspring just does politicking under another name. He says social welfare groups act like secretly funded political committees, "and that's contrary to certainly congressional intent, but also in my view contrary to what's good for a healthy democracy."

So what we found is a system that seems to aggravate everyone involved in it.

Dan Pero, head of the social welfare group that ran the attack ad against Michigan Supreme Court Justice Alton Davis — and which NPR and CRP profiled yesterday — puts it this way: "I don't like what I see today in politics. But it is what it is. I wish I could go back to when I was growing up and we only had three TV stations. And you can't put the genie back in the bottle on that either.

Davis, who lost the election to keep his seat on the bench, says, "The old labels don't mean anything. Republican doesn't mean anything. Democrat doesn't mean anything. It's the huge money and everybody else. That's the deal now, I think, going forward. Up and down the road."

Next stop on this road is the 2014 midterm elections. As the impact of social welfare groups continues to increase, so does the volume of political cash coming from donors the public will never know.

This story was reported by NPR's Peter Overby, together with Viveca Novak and Robert Maguire from the Center for Responsive Politics.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

STEVE INSKEEP, HOST:

When people voted yesterday in places like New Jersey or Virginia or New York, they likely mostly were thinking about state or local issues. But sometimes when there's a state or local election, the issues have already been framed for voters by national groups pursuing their own agendas, and spending millions of dollars to do so using secret donations.

NPR's Power, Money and Influence correspondent Peter Overby has been helping us to trace the spending of such national groups, spending they are not so eager to disclose. Hi, Peter.

PETER OVERBY, BYLINE: Hello.

INSKEEP: OK. You've been investigating this. You told us yesterday about an election in Michigan.

OVERBY: That's right, Steve. A Supreme Court justice in Michigan lost his seat - this was back in 2010.

INSKEEP: Right.

OVERBY: He had been attacked by a social welfare group, a tax-exempt organization which was funded by other social welfare groups.

INSKEEP: And these are social welfare groups that get a tax exemption because they're promising to work for social welfare, but you're say - they're being involved in politics, here.

OVERBY: Right. They've really become a vehicle of choice for big political cash. I've been working with the Center for Responsive Politics on this. It's a nonprofit research organization that tracks political money. And what we saw is that eight years ago, their spending in federal campaigns was a bit more than $3 million. For the last election cycle, it was $256 million. That's an increase of close to 8,000 percent.

INSKEEP: Eight thousand percent. For every one dollar these groups were spending in the past, they're now spending $80. Why would the spending be growing so quickly?

OVERBY: Well, it used to be that donors with deep pockets would give to the national party committees. They'd write checks of 50- or $100,000 at a time. But Congress shut that down as a loophole in the contribution limits. So you know that phenomenon in political spending called the hydraulic effect?

INSKEEP: It's like a balloon, right? I mean, if you push in one area, it expands in another area.

OVERBY: Right. And that place is social welfare organizations, or 501(c)(4)s, as they're known in the tax code. We used IRS records to track the flow of cash through social welfare groups, and this is the big thing we saw: Some of the social welfare groups do nothing but raise money to fund the other ones. We'd find one group, and then another one behind it, and then maybe a third one behind that. It's generally accepted as legal, and all of it is invisible to voters.

INSKEEP: So you're saying that it's a web of groups like this that were behind that race you told us about yesterday in Michigan?

OVERBY: That's right. And this morning, we're going to look at one of those groups. It's based in the Washington, D.C. suburbs, and it's called the Wellspring Committee.

ANN CORKERY: We're blessed to know them and to present them with this honor. And may I ask the Governor and Mrs. Romney to come forth.

OVERBY: That's conservative activist Ann Corkery, the president of Wellspring. She was giving the Romneys a medal from the conservative Beckett Fund for Religious Liberty, where she's on the board. She's also a lawyer specializing in running reputation campaigns. Corkery wouldn't talk to us, so I went to see Wellspring's lawyer, Cleta Mitchell, one of Washington's top campaign finance attorneys.

CLETA MITCHELL: This sudden angst about 501(c)(4)s is startling to me.

OVERBY: Mitchell wouldn't say much more about Wellspring. We do know that its spending spikes in election years; that in 2010, it had financial ties to more than two dozen other groups; that it sent money to groups working judicial elections in five different states. Mitchell says there's nothing surreptitious about any of this. She says it works almost like an investment fund, shepherding a donor's money into selected, other social welfare groups. She says big donors can be smart in business...

MITCHELL: And yet things they would never, ever do in business, they'll do in politics.

OVERBY: So groups like Wellspring are there to help. All of this money being raised and transferred behind a curtain of nondisclosure - this is the crux of what makes social welfare groups controversial.

DONALD TOBIN: It reminds me more of tax shelter transactions.

OVERBY: This is Donald Tobin, a law professor at Ohio State University. He specializes in tax law and campaign finance.

TOBIN: One of the interesting things for Wellspring is on all of their filings, they claim that they're not intervening in a political campaign. But then they give to huge numbers of organizations who do engage in political campaigns.

OVERBY: To which Mitchell responds, these are not political committees.

MITCHELL: What's bad about this?

OVERBY: And the IRS agrees. Most social welfare groups are civic-minded, like the local volunteer fire department or the League of Women Voters. But a social welfare group can commit up to half of its resources on political intervention. And giving money to a second social welfare group can still count as social welfare for the donor group, even if the second group spends the money on politics. Tobin sees that as a loophole, and says it raises questions about the IRS' law enforcement.

TOBIN: We have an agency that doesn't have the resources to enforce, and doesn't have the will to enforce.

OVERBY: The IRS has been hit with budget cuts and with partisan attacks. Just this spring, congressional Republicans - like Wyoming's Cynthia Lummis - accused it of hounding conservatives who applied for social welfare status.

REP. CYNTHIA LUMMIS: This is far worse than anything we've seen in Watergate...

OVERBY: Now the IRS has new management, and it says it's working to clarify the rules. We asked the IRS for comment, and got no response. So we called Marcus Owens. He ran the IRS division on exempt organizations throughout the 1990s. He says the agency might start challenging the claims of social welfare groups or, under pressure, it might turn more passive.

MARCUS OWENS: Something that looks more than just processing the paper, rather than examining what is on the paper.

OVERBY: For now, Washington sees social welfare groups less as a problem than as a terrific way to raise money across the political spectrum. Cleta Mitchell, the campaign finance lawyer, says that's fine. If someone wants to make political donations...

MITCHELL: That is not the government's business. If people want to spend the money, and they want to get together with their friends and spend the money, let them do it.

OVERBY: And, she says, let them do it privately. She says conservative donors risk harassment by liberal activists when their names are disclosed, violating their free-speech rights. So far, conservatives have predominated in social welfare politics. In the 2012 campaigns, 20 groups on the right ran up a million dollars or more in disclosed spending, compared to seven groups on the left. But liberals are working to catch up.

As for Wellspring, Mitchell says it's just a social welfare group that educates Americans about the importance of free-market principals. But Donald Tobin, the law professor, says it's politicking under another name. He says social welfare groups are acting like secretly funded political committees.

TOBIN: Contrary to - certainly - congressional intent but also, in my view, contrary to what's good for a health democracy.

OVERBY: So what we found is a system that seems to aggravate everyone involved in it. Yesterday, we heard from a Michigan Supreme Court justice who lost his election bid, and from the consultant whose social welfare group helped to beat him - people on opposite sides, both of them jaundiced about the system. First, the conservative consultant, Dan Pero.

DAN PERO: I don't like what I see today in politics, but it is what it is. I wish I could go back to when I was growing up. We only had three TV stations. And you can't put the genie back in the bottle on that, either.

OVERBY: And the target of Pero's ad: liberal former justice Alton Davis.

OVERBY: Next stop on this road is the 2014 midterm elections. The impact of social welfare groups continues to increase, and so does the volume of political cash coming from donors the public will never know.